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When parents separate, they need to decide who will have “custody” of the children. There are two (2) types of custody: (1) Legal custody means who will continue to make major decisions relating to the children’s lives, i.e., healthcare, education, etc.; and (2) Physical custody means who the children will reside with.

In a family law case, either parent can have custody or both parents can share custody rights. If the parents can agree on how they want to share their children, the Courts will most likely approve any custody agreement that is made. In the event that you are unable to agree on custody of your children, then the Court will send you to a Court mediator in an attempt to assist you and the other parent to come to an agreement. If you are unable to agree on custody after meeting with the mediator, the Court will decide on what parenting plan is best for your children.

There are two (2) types of custody orders. Legal custody can be made as either joint or sole. Joint legal custody means both parents share in the rights and responsibilities of major decisions pertaining to their children’s lives. Sole legal custody means one parent is responsible and would have the right to make important decisions relating to their children’s lives.

Physical custody can be ordered as joint, sole or primary. Joint physical custody means the children share significant time in both parents’ homes. It does not necessarily mean that each parent has 50% of the time with the children. Sole or primary physical custody means that the children spend most of their time with one parent, and typically visit the other parent.

Custody orders are made based on the best interests of the children. The Courts typically keep the children together. The judge must make his or her decision based upon the parent’s ability to care for the children, the ages of the children and the preference that the children might have, health and safety issues of the children, the emotional relationship between the parents and the children, and history of any domestic violence or substance abuse, etc.

The judge does not consider the gender of the parents in making a custody determination. In most situations, the Court follows the California legislature’s policy that it is typically best for the children to have “continuing and frequent contact” with both parents after separation or divorce. This can be rebutted if a parent would be a harm to the children and the Court finds that it would not be in the best interests of the children to be with the other parent.

If custody is highly-disputed by the parents, the judge may appoint a custody expert to make custody recommendations to the Court. Additionally, in disputed custody cases, the Court may appoint an attorney to represent the children to assist the Court in making a decision that would be in the children’s best interests.

You may ask, “After a custody order has been made, can it ever be changed?” Yes, if both of the parents agree to a change of a custody order, the Court will approve the new custody agreement. If the parents cannot agree, the parent who wants the change can file a motion with the Court asking the judge to modify the current orders. Since continuity and stability of the children are important factors, the parent seeking the change will need to show a “change of circumstances” since the original custody order was made that warrants a change.

Mr. Kirk received his Juris Doctor degree cum laude from University of the Pacific McGeorge School...Read More

Mr. Toberty received his Juris Doctor degree cum laude from Regent University School of Law in Virginia in 1990. He was a member...Read More

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At Kirk & Toberty, we have more than sixty years of combined experience representing our clients in court. During that time we have successfully represented thousands of clients. We understand that the possibility of becoming involved in legal matter... Read More

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